Delhi High Court
Badar Rabbani Qutbi & Ors. vs Smt.Saiedan on 14 July, 2011
Author: Indermeet Kaur
A-23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 14.7.2011
+ CM(M) No.1759/2004
BADAR RABBANI QUTBI & ORS. ...........Petitioner
Through: Mr.Himal Akhtar, Advocate.
Versus
SMT.SAIEDAN ..........Respondent
Through: Mr.Abhik Kumar, Mr.Sidharth
Shanker and Mr.Rajesh Kumar
Naidu, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This petition has impugned the order dated 09.9.2004 which
was an appeal filed by the tenant to set aside the order of eviction
passed by the Additional Rent Controller (ARC) dated 18.12.2002.
Vide order dated 18.12.2002 the eviction petition filed by filed by
the landlord under Section 14(1)(a) of the Delhi Rent Control Act
(hereinafter referred to as "the DRCA) had been decreed. The
appeal had been preferred by the tenant; this was an appeal under
Section 38 of the DRCA; the appeal had been allowed; the eviction
petition stood dismissed.
2. The landlord has now preferred this petition under Article
227 of the Constitution of India. With the consent of the parties,
the matter has been taken up for final disposal.
3. On behalf of the petitioner it is submitted that the appeal
under Section 38 of the DRCA can be entertained only on a
question of law; the Tribunal is not empowered to reappraise the
evidence and to draw a conclusion on his own surmises; this is not
within the jurisdiction and domain of the Tribunal. To support his
submission reliance has been placed upon a judgment of this
Court report in MANU/DE/8943/2006 Baldev Raj Vs. C.Natesan &
Ors. CM(M) No.2678/2005 decided on 8.8.2006. It is submitted
that the order of the ARC decreeing the eviction petition was
passed on sound reasoning and could not have been interfered
with on mere conjectures.
4. Arguments have been rebutted. It is pointed out that the
order of the Tribunal suffers from no infirmity as the very basis of
the maintainability of a petition under Section 14(1)(a) of the
DRCA had been disputed.
5. The contention before the Rent Controller was that the
alleged tenant was not a tenant of the landlord; he was a resident
of premises bearing No.1025 whereas the landlord is claiming his
ownership qua premises bearing No.1063 A, Ward No.7,
Mehrauli, New Delhi.
6. To rebut this submission learned counsel for the petitioner
has placed reliance upon a judgment of the Apex Court reported
in 1 SCR 259 Om Prakash Gupta Vs. Rattan Singh & Anr. To
support his submission it is contended that a mere denial by the
tenant which is so in the instant case would not by itself be
sufficient to oust the jurisdiction of the Rent Controller.
7. Record shows that in the written statement filed before the
Rent Controller contention of the tenant all along was that he is a
tenant of premises bearing No.1025, Ward No.7, Dargah Sharif,
Mehrauli, New Delhi; he had denied the very basis of the
relationship of landlord and tenant; all averments made in the
petition have been denied. It had been denied that rent had ever
been paid to the petitioner.
8. Oral and documentary evidence had been led before the
ARC. The ARC had relied upon Ex.PW-1/6, Ex.PW-1/7 and Ex.PW-
1/8 which were certified copies of the earlier proceedings
preferred by the landlord against other persons (admittedly not
the respondent) wherein it had come on record that the petitioner
i.e. Hakim Allamma was the owner of the house No.1063A, Ward
No.7, Mehrauli, New Delhi. It is also not in dispute that in an
earlier litigation between the parties a Local Commissioner had
been appended to verify the physical status of the property
No.1063 A and wherein he had reported that one Smt.Saieda
(respondent) is in occupation of portion no.3A as depicted in the
site plan prepared by him and annexed with his report
(Ex.RW1/P4) which had been filed in that suit.
9. It is relevant to state that that suit was a suit for permanent
injunction filed by the petitioner/landlord against the respondent
wherein the local commissioner had been appointed; it also not in
dispute that the said suit is yet pending decision. It is also
undisputed that no interim relief has been granted to the
petitioner in that case.
10. Admittedly there is no document of tenancy between the
parties; no rent receipt or rent payment has been filed; contention
of the landlord being that the tenancy was oral and rent was also
being paid by cash. Thus the report of the Local Commissioner
(Ex.RW1/4) was the only document which was available before the
Rent Controller to hold that the relationship of landlord and
tenant does exist between the two parties.
11. In appeal the Rent Control Tribunal had set aside this
finding; the question of law raised before the Tribunal was as to
whether, in fact, a relationship of landlord and tenant had existed
between the parties. The Tribunal had correctly appreciated the
fact that the report of the Local Commissioner was of little value
as the Local Commissioner had not been summoned in the present
eviction proceedings and has not been subjected to any cross-
examination; more over the report of the Local Commissioner had
been filed in a pending proceedings which was yet pending
adjudication which was a suit for permanent injunction where
admittedly the petitioner/landlord has not got any interim relief.
That apart there was no other document to support the
submission of the landlord that Saieda was his tenant. The tenant
had categorically and clearly denied this relationship. Her
contention being that she was the owner in her own right of her
property i.e. the property bearing No.1025.
12. The Tribunal had correctly noted that the finding returned
by the Rent Controller was a finding based on no evidence;
Ex.PW-1/6 to Ex.PW-8 merely advanced the submission about the
ownership of the petitioner qua the suit property i.e. the property
No.1063 but did not establish that the defendant was a tenant of
the said premises. This finding of the ARC was rightly set aside
by the Tribunal. The ARC had mis-directed himself to hold that
merely because the tenant had failed to produce any document
about her ownership of the property i.e. the premises bearing
No.1025, it should be presumed that the parties had shared a
landlord and tenant relationship.
13. The order of the Tribunal suffers from no infirmity. The
Apex Court in Om Prakash Gupta (supra) had noted as follows:
"Ordinarily it is for the Civil Courts to determine whether and, if
so, what jural relationship exists between the litigating parties.
But the Act has enacted to provide for the control of rents and
evictions of tenants, avowedly for their benefit and protection.
The Act postulates the relationship of landlord and tenant which
must be a pre-existing relationship."
14. The jurisdiction of the Rent Controller, in fact, is based on a
pre- assumption of a landlord-tenant relationship and when this
fact is by itself denied, it is for the Civil Court to decide this
disputed question of fact. It is also relevant to note that the right
of a second appeal has now been abrogated as Section 38 of the
DRCA has been amended. Article 227 of the Constitution of India
is not a substitute for the said provision. The right of second
appeal was admittedly a limited right on a substantial question of
law only; interference under Article 227 is warranted only if there
is gross perversity or illegality or a gross injustice has been
caused which the court in its discretion considers it fit to rectify.
15. No such case is made out. The order of the Tribunal suffers
from no infirmity. Dismissed.
INDERMEET KAUR, J.
JULY 14, 2011
nandan
